Kumas v The Queen
[2017] VSCA 287
•6 October 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0191
| MEHMET KUMAS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, WEINBERG and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 October 2017 |
| DATE OF JUDGMENT: | 6 October 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 287 |
| JUDGMENT APPEALED FROM: | DPP v Kumas (Unreported, County Court of Victoria, Judge Allen, 10 August 2017) |
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CRIMINAL LAW — Appeal — Sentence — Riot — Parity — Sentences imposed on co-offenders by different judges — Whether sentencing judge employed two-stage process — Requirement to compare applicant’s role with co-offender’s as part of instinctive synthesis — No error — Application for leave to appeal refused — DPP (Cth) v Gregory (2011) 34 VR 1, Lowe v The Queen (1984) 154 CLR 606 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Smallwood | Emma Turnbull Lawyers |
| For the Respondent | Ms K E Judd QC | John Cain, Solicitor for Public Prosecutions |
MAXWELL P
WEINBERG JA
PRIEST JA:
Introduction
Two-tier (or two-stage) sentencing is anathema to the instinctive synthesis which guides the exercise of the sentencing discretion in this State.[1]
[1]R v Young [1990] VR 951; R v Perrier (No 2) [1991] 1 VR 717; R v O’Brien (1991) 55 A Crim R 410; R v Nagy [1992] 1 VR 637; R v Sahari (2007) 177 A Crim R 1; Trajkovski v The Queen (2011) 211 A Crim R 118; DPP (Cth) v Gregory (2011) 34 VR 1. See also AB v The Queen (1999) 198 CLR 111; Wong v The Queen (2001) 207 CLR 584; Markarian v The Queen (2005) 228 CLR 357.
In the present application for leave to appeal against a sentence imposed upon the applicant for riot,[2] it is claimed that the sentencing judge indulged in a form of two-stage sentencing. Thus, the applicant’s sole ground of appeal is:
The sentencing discretion miscarried as a consequence of the sentencing judge engaging in a form of two‐stage sentencing rather than instinctively synthesising all relevant considerations.
Particulars:
(a) The sentencing judge used the sentence imposed in DPP v Luca [2016] VCC 1573 (Luca) as a starting point.
(b) The sentencing judge determined that the applicant should receive a longer sentence than was imposed in Luca, because: (i) the applicant’s role was at least as serious if not marginally more serious; (ii) the applicant was not a youthful offender; and (iii) the applicant had a more significant criminal history.
(c) The sentencing judge moderated the extent to which the applicant’s sentence was to be longer as a result of matters personal to the applicant.
[2]The judge imposed a sentence of two years and 10 months’ imprisonment with a non-parole period of 16 months. Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that but for the plea of guilty he would have sentenced the applicant to four years’ imprisonment with a non-parole period of two years and six months.
As will become clear, in our view, the complaint embodied in the ground of appeal is not well-founded. We would thus refuse leave to appeal.
The offending
It is necessary to say something of the applicant’s offending.
By way of background, the Metropolitan Remand Centre (‘MRC’) is a 1,006 bed maximum security prison located in Ravenhall, a suburb of Melbourne. It is operated by Corrections Victoria, and is predominantly used to house remanded male prisoners. On 30 June 2015, it was the scene of the largest riot in Victoria’s correctional history. At the time of the riot, 868 prisoners were situated there, in a mix of single and double cells, across twelve units.
A ban on smoking was the catalyst for the riot. In 2014, legislation was passed to make it an offence to smoke in Victorian prisons from 1 July 2015. Corrections Victoria developed a transition plan. Thus, on 1 May 2015, the range of tobacco products available to prisoners was reduced, ahead of the imminent total ban. In the period leading to the riot, this prompted some prisoners to conduct a number of (generally peaceful) protests.
So as to gain a general appreciation of the setting in which the applicant’s particular offending took place, it is convenient to draw on the sentencing remarks in DPP v Luca:
On 30 June 2015, 200—300 prisoners at the MRC were involved in the largest riot in Victoria’s correctional history. Evidence indicated the protest by prisoners on 30 June 2015 was planned with the intent of disrupting the routine of the prison, to force authorities to suspend, amend or reverse the ‘no smoking’ policy. A total smoking ban was due to commence in Victorian prisons on 1 July 2015. Peaceful protests were held by prisoners at the MRC in the days leading up to the riot.
During the riot fences were breached, prison vehicles (including the use of a tractor) were used to cause damage to gates and fences, the Central Movement Control (CMC) was stormed twice, the canteen was looted, and multiple accommodation and non-accommodation units were significantly damaged. That damage included the use of makeshift weapons to smash windows, damage to equipment and fixtures inside the units, and the lighting of fires both inside and outside the units.
It took 15 hours for Prison Officers, Police and Fire Brigade personnel to restore order to the prison and secure all prisoners. The riot appeared to have been in an acute state for a shorter period of time: from approximately 11.40 am when some prisoners began congregating and chanting for tobacco through to the late afternoon when the Central Movement Control (CMC) was breached for a second time. It had essentially ceased by 11pm.
Prison officers and public servants were forced to flee the grounds for their own safety. A number of Prison Officers reported minor physical injuries including inhalation of chemical agents, which were thrown back at them by prisoners. Other minor injuries occurred during physical clashes with rioting prisoners at the CMC. Some staff reported psychological injuries, such as recurring nightmares and ongoing stress, as a direct result of the threats and fear inflicted by the prisoners.
A large number of the prisoners then had to be relocated after the riot to other prison facilities due to large parts of the MRC no longer being operable.
As at 11 April 2016 the Department of Justice had incurred $12.1 million worth of costs relating to the riot, of which approximately $6.89 million related to repairs and maintenance of the MRC.
In all, 102 offenders have been charged in relation to the riot.[3]
[3][2016] VCC 1573 [4]–[10] (Chief Judge Kidd) (‘Luca’).
The applicant undertook a significant and active role in the riot over a period of hours, from 11.53 am until 5.32 pm. Thus, he:
· was actively involved in causing damage to the fences between MRC areas 2 and 3;
· wore a disguise (a windcheater and gloves);
· was actively involved in breaching the Central Movement Control (‘CMC’) and was in the initial wave of prisoners who breached the CMC;
· obtained breathing apparatus from the CMC and put it on;
· entered the canteen (which was looted);
· entered the Ballan Unit and caused damage to property;
· encouraged other prisoners to destroy a CCTV camera;
· fed a fire;
· drove tugs (a type of electric vehicle), and was a passenger on other tugs;
· sprayed water into a cell at the Burnside Unit; and
· assisted in handling a trailer containing rocks that were thrown at prison staff.
In his sentencing remarks in the present matter, the judge described the applicant’s role as follows:
It seems that you got involved at about midday on that day. You were actively involved in causing damage to the fence line between Areas 1 and 2. Amongst other things, you sought to force apart the wire mesh using your hands as other prisoners kicked and pulled at that fence. As a result of that behaviour on the part of yourself and your fellow rioters a breach was created permitting prisoners to move between Areas 2 and 3. A little later you joined the main prisoner cohort as it made its way through Area 3 towards the Central Movement Control Centre (‘the CMC’).
You removed a windcheater you were wearing and used it to disguise your face and head as you moved towards the CMC. You were at the forefront of the prisoner cohort which reached the fence and gate area at the CMC. You forcibly kicked the fence, attempting to breach the fence. When the breaching of the CMC was achieved you were one of the initial wave of prisoners who ran into that area where you obtained a breathing apparatus from within a cupboard and put it on. You subsequently removed the gas bottle but continued to wear the face mask. A little later you left the CMC, went into the adjacent yard and from there moved to the prisoner canteen. You later emerged carrying an armful of items that you had looted from the canteen. You re-entered the canteen again and removed more items. About 20 minutes later you made your way back to the Area 2 yard and from there entered the Ballan Unit with other prisoners. You pushed a computer screen onto the ground and threw material that was sitting inside the prisoner's office onto the ground. You made your way to the A side of the Ballan Unit where you pointed at a CCTV camera appearing to identify it as a target for another prisoner who then used a weapon to destroy that camera. You placed a pair of gloves on your hands and exited the Ballan Unit. A few minutes later, you were seen feeding a fire that had been started in Area 2 by throwing unidentified material onto the fire.
About half an hour later you were seen riding on the back of a tug vehicle that was being driven through the yard by a fellow prisoner. Shortly after that you used a fire hose in the Area 3 yard and appeared to be spraying water into a cell in the Burnside Unit. Just before 3 o'clock you assisted other prisoners to handle a trailer that was loaded with rocks and other debris. Shortly after, you seemed to be in charge of a stolen tug that drove through Area 3 and you were later seen to be a passenger inside that tug was it was driven by a fellow prisoner. Shortly before 5 pm, you were again seen driving a stolen tug vehicle, this time in the Area 4 yard and you were finally seen involved in the riot at about 5.30 when you were loitering inside the Chilwell Unit.[4]
[4]DPP v Kumas (Unreported, County Court of Victoria, Judge Allen, 10 August 2017) [5]–[7] (‘Sentence’).
Sentencing for Riot
At the time of the commission of this offence, riot was a crime at common law,[5] punishable by 10 years’ imprisonment.[6]
[5]It was abolished from 13 September 2017 by the Crimes Legislation Amendment (Public Order) Act 2017. See now Crimes Act 1958 s 195G.
[6]See formerly Crimes Act 1958 s 320.
In R v McCormack,[7] the Full Court (Young CJ, Kaye and McGarvie JJ) described the offence, and the features which bear upon its gravity, as follows:
[7][1981] VR 104.
We look first at the nature of the crime of riot and the features of a riot which have a bearing on the gravity of the offence of a person who participates in a riotous assembly.
The definition of this common law misdemeanour in Halsbury’s Laws of England 4th ed, vol 11 pp 506–7, para 861 is: ‘A riot is a tumultuous disturbance of the peace by three or more persons assembled together with an intent mutually to assist one another by force if necessary against anyone who opposes them in the execution of a common purpose and who execute or begin to execute that purpose in a violent manner so as to alarm at least one person of reasonable firmness and courage...
‘Any person who takes part in a riot commits an indictable offence at common law, punishable by fine and imprisonment at the discretion of the court.’
The crime of riot is properly included in that volume of Halsbury’s Laws of England in the chapter, ‘Offences Against the Government and the Public’. It is an offence against both the state and the public. In dealing with offences constituted by being a member of an unlawful congregation, it is said in Stephen’s Commentaries on the Laws of England 21st ed, vol IV, p 135:--
‘The common thread by which all these offences are bound is the menace to the tranquillity of the State.
‘There are three classes of meetings, participation in which may render a person guilty of a crime. These, in order of increasing gravity, are unlawful assemblies, routs and riots.’
It is clear that the relative gravity of the three crimes depends on the degree to which the crime is associated with violence: Archbold, Criminal Pleading, Evidence and Practice, 39th ed, p 1500, para 3574:--
‘It is said that the distinction between a riot, rout and unlawful assembly is that the first is a tumultuous meeting of persons who are guilty of actual violence; the second where they endeavour to commit an act which would make them rioters; and the last where they meet with an intention to make a riot, but neither carry their purpose into effect, not make any endeavour towards it.’
A riot, like an affray, involves both violence and public alarm. They involve public alarm because they are currently or potentially dangerous. The level of violence used and the scale of the affray or riot are factors relevant to sentence: Thomas, Principles of Sentencing, 2nd ed, p 110. A riot usually carries with it an inherent danger of injury to persons or property or both. There is a danger that members of the crowd will respond to what has been called, ‘the psychology of the crowd’: Wright v McQualter (1970) 17 FLR 305, at p 318. The danger is great when the crowd can be described as a mob threatening violence. With such a mob violence may suddenly erupt to a high level and may quickly be directed in new directions. In our opinion the present or potential danger of injury inherent in a particular riot is a consideration relevant to the sentence of any rioter. Compare: Wise v R, [1965] Tas SR 196, at pp 202–3.
From the fact that a riot is dangerous it follows that it is reasonably foreseeable that some injury may result from it. If for some reason special to an individual rioter, he did not realize that the riot was dangerous or did not foresee that a particular injury or type of injury, might result, that could be a factor given weight in mitigation of penalty. The fact that a particular injury resulted from the riot could be treated as an aggravating factor. Similarly the fact that an offender knew that the riot was dangerous or foresaw or intended a particular injury or type of injury, may be treated as going to aggravation: R v Boyd [1975] VR 168, at p 172; R v Thompson (1975) 11 SASR 217, at pp 220, 222 and 226; Wise v R [1965] Tas SR 196. Of course, in sentencing for the crime of riot, a judge is not entitled to take into account the possibility that the rioter may have been guilty of a graver offence (R v Boyd, supra) or of an offence of which he has been acquitted: R v Webb [1971] VR 147.[8]
[8]Ibid 107–8.
The applicant’s circumstances
Before turning to the applicant’s submissions in this Court, it is convenient to consider the applicant’s personal circumstances, as presented to the sentencing judge.
His Honour had before him a number of documents which detailed the applicant’s subjective circumstances, including his psychiatric history and intellectual impairment. These were: a psychological report of forensic psychologist David Ball, dated 27 September 2016 (Exhibit 2); a Forensicare psychiatric report authored by Dr James Belshaw, dated 24 May 2017 (Exhibit C); a neuropsychological report of clinical neurophysiologist Jane Lofthouse, dated 28 June 2017 (Exhibit 4); and a report from Orygen Youth Health (Exhibit 5). The applicant also relied on two character references (Exhibit 3).
It seems that the applicant is ‘the middle of five brothers’. His father, who was born in Turkey, worked in real estate and property development in Australia, but moved back to Turkey a decade ago, with the applicant’s mother.
The report from Orygen Youth Health recited that the applicant’s first attendance at North Western Mental Health was in 2010, when he was aged 21. He was admitted as an involuntary patient to the inpatient psychiatric unit on 26 May 2010, where he was diagnosed as suffering ‘Schizophreniform Psychosis’. The psychiatric history noted that, between the ages of seven and nine, the applicant had been treated for Attention Deficit Hyperactivity Disorder (‘ADHD’) and aggression; and that at age 15, had come to the notice of the Department of Human Services in relation to self-harming behaviour. It was noted that the applicant had suffered congenital hepatitis B from birth and had been treated for that condition at the Austin Hospital on a regular basis. The records also noted that the applicant had a long history of using illicit substances since the age of 14. He had previously presented himself to the North Western Mental Health Service ‘seeking help for anger, agitation, paranoia and psychosis’ when aged 20. On 18 June 2010, the applicant was referred for admission by the outpatient team as a result of suffering ‘agitation and suicidal ideation’. The history of presenting illness referred to him ‘suffering from paranoia and intermittent auditory hallucinations for the last six months’, and the discharge diagnosis again described schizophreniform psychosis.
Psychologist David Ball said that the applicant had been medicated for depression and anxiety during his teenage years. The applicant told Mr Ball that his employment history had come to an end in the context of ‘depression and drug use’. Mr Ball referred to the fact that the applicant had previously been diagnosed as suffering schizophreniform psychosis, and he noted that he presented as suffering significant schizoid and avoidant personality features. He also stated that the applicant satisfied ‘diagnostic criteria for moderate post-traumatic stress disorder following his active combat role in the Turkish army’.
The Forensicare report authored by Dr James Belshaw stated that the applicant’s family home was very happy but strict. It was said that the applicant attended a number of different primary schools, and that, whilst he did not repeat any primary school years, he was offered teaching assistance. The applicant told Dr Belshaw that he barely passed and that he struggled with concentration whilst a primary school student, those recollections being consistent with the material suggesting that he suffers a certain level of intellectual impairment, together with ADHD. The applicant also told Dr Belshaw that at the age of nine he was prescribed medication for concentration, and that he attended school Monday to Thursday, but went to the Child and Adolescent Mental Health Service for assistance every Fridays.
At secondary school, the applicant developed a pattern of disruptive behaviour, fighting with peers and being disruptive in class. He was suspended on many occasions, before leaving school at age 15 during the course of Year 10. The applicant was then employed for a short time with his father in his small supermarket business. His father arranged employment for him as a trainee butcher, but that came to an end when it was discovered that he suffered from hepatitis B. For about four years, from the age of 17, the applicant worked as a plasterer. He told Dr Belshaw that during those years he rebelled against his family’s strict values and religious principles and, amongst other things, that he began using illicit drugs heavily. The applicant told Dr Belshaw that he was admitted to a mental health facility when aged 21. It was shortly after his time at the mental health facility that the applicant travelled to Turkey with his family, and was drafted into compulsory military service because he was a Turkish citizen. He was sent to active service on the Syrian border where, according to what he told Dr Belshaw, the experience of war was ‘full on’, and he saw dead bodies, and himself shot people. In this context the applicant’s mental health declined, and he suffered symptoms of paranoia and hallucinations, leading to him being admitted to a psychiatric hospital in Turkey. Upon his discharge in 2012 the applicant returned to Australia; and, as he told Dr Belshaw, ‘got on the drugs, ice’. He was unable to obtain employment and was eventually placed on the disability support pension as a result of his psychiatric condition. He told Dr Belshaw that during the years since returning to Australia he had spent much time ‘couch-surfing here and there, living in stolen cars’ and spending all of his money on drugs.
Doctor Belshaw reported that the applicant had been engaged in significant illicit drug abuse over the years, starting with cannabis in his mid-teens, moving quickly into the abuse of amphetamines by the age of 16, and then, from about age 20 onwards, using ice on a regular basis. Whilst the applicant stopped using ice when in Turkey, he relapsed quickly when he returned to Australia. The applicant told Dr Belshaw that he ‘hated the come down’, and wanted to remain intoxicated permanently. Doctor Belshaw noted that in the days before the riot, the applicant was reviewed by a psychologist at the MRC to assess his suitability for follow-up with Forensicare’s mobile forensic mental health service. Indeed, five days before the riot, on 25 June 2015, the applicant was reviewed by a psychiatric registrar at the MRC, to whom he reported internally-perceived voices. The registrar was under the ‘impression’ that the applicant was experiencing ‘an underlying vulnerability to psychosis, exacerbated by drug use’ (although not necessarily a schizophrenic illness requiring ongoing antipsychotic therapy). Hence, on 25 June 2015 the applicant was prescribed antipsychotic medication in a moderate dose.
In Dr Belshaw’s opinion, the applicant did not suffer ‘a major mental illness such as schizophrenia or bipolar affective disorder, that would necessitate ongoing treatment with antipsychotics’. In his view, it was more likely that the applicant suffered periods of substance-induced psychosis in the past, which appeared to lessen with abstinence or concurrent treatment with antipsychotics. Doctor Belshaw thought that the applicant’s report of symptoms such as paranoia, mistrust of others, misinterpretation of others’ actions, and voices experienced internally, were more likely explained by his ‘fragile sense of self’, secondary to his lifelong sense of rejection and lack of belonging. He said that such individuals ‘are at a higher risk of brief psychotic episodes when exposed to stress, or when they engage in illicit substance abuse’. Doctor Belshaw went on to describe the applicant’s other symptoms as being ‘in keeping with ongoing symptoms of ADHD’, and added that adult ADHD symptoms ‘can include: poor concentration, racing thoughts, poor sleep, anxiety, boredom, and a propensity to engage in risky or exciting behaviour’. In Dr Belshaw’s view, symptoms of ADHD, for example, seeking excitement, may have been a contributing factor to the commission of the offence (although it would not have been an overwhelming motivator). Doctor Belshaw concluded that ‘a custodial sentence would weigh more heavily on [the applicant] than on a person without his symptoms and innate personality characteristics’.
Following a battery of tests, Jane Lofthouse, a clinical neuropsychologist, concluded that the applicant functioned in the low-average range, and was below average in terms of his intellectual capacity. She said that his ‘unsettled, edgy and irritable presentation’ could only be explained by intellectual impairment against a background of psychiatric issues, including negative pervasive personality traits. Ms Lofthouse said that: ‘Whatever the cause, [the applicant] has mild to moderate intellectual impairment which will impinge on his ability to fully function and this will be more marked through the destabilising effects of his drug use’. Finally, she expressed the opinion that due to his intellectual impairment and psychiatric issues, it was likely that the applicant would experience greater problems in completing a prison term compared with people who did not exhibit those conditions. Relevant to the applicant’s moral culpability, Ms Lofthouse expressed the opinion that his ‘intellectual impairment was probably present at the time of his criminal offending and placed him at risk of and contributed to his unreasoned and poor decision making that cumulated (scil, culminated) in his criminal offending’. She added that the applicant’s ‘underlying irritable and aggressive behaviours are further accentuated by psychiatric issues including negative personality traits and are further causative factors in his criminal offending’.
In light of the material presented to him, the judge was satisfied that ‘overall’ the applicant’s general mental condition contributed to his behaviour in that it reduced his ability to exercise proper judgment and, to some extent, to make calm and rational choices. Accordingly, his ‘moral culpability, should be reduced, to some extent’.[9]
[9]Sentence [28].
Moreover, the judge was satisfied that the applicant ‘will find gaol harder than an ordinary prisoner who does not suffer the mental conditions’ that he suffers. These matters did not eliminate, but moderated, the need for specific and general deterrence, and punishment. His Honour observed that the fact that the applicant had ‘spent about three months in lockdown conditions as a result of the riot … added to the hardship of that period of imprisonment’.[10]
[10]Ibid [29].
The judge thought it clear that, apart from an affray when he was aged 21, the applicant ‘had not come before the courts in relation to serious criminal offending and drug-affected offending’ until he was 23, by which time he was ‘seriously in the grip of ice addiction’.[11] He thought the applicant’s prospects of rehabilitation to be ‘guarded’, and opined that ‘those prospects will be improved by [the applicant] being released into the community with appropriate support and supervision’.[12]
[11]Ibid [30].
[12]Ibid [31].
The impugned sentencing remarks
As we have mentioned, the applicant’s ground of appeal asserts that the exercise of the sentencing discretion miscarried ‘as a consequence of the sentencing judge engaging in a form of two‐stage sentencing rather than instinctively synthesising all relevant considerations’; and in particular, as a result of the sentencing judge using the sentence imposed in Luca as ‘a starting point’.
Well into his sentencing remarks the judge observed:
The Crown have described your conduct as significant. That is, the Crown has submitted that you played a significant role in the riot. Your counsel has conceded that sensibly. The Crown further submitted that your role was greater than the role that was played by one of your co-offenders, Mr Luca, who was the first of the offenders to be sentenced in these matters. He was sentenced by the Chief Judge on 24 October 2016.
The Crown submitted that I should find that your role was greater than Mr Luca because you were involved for a significantly longer period than him, at least two hours longer, and you were directly involved in breaching offences and tendering the fire. Whilst it was conceded by the Crown that at no stage did you carry a weapon, it was submitted that you assisted other prisoners who were using weapons. The Crown went on to identify the fact that whilst Mr Luca was sentenced as a youthful offender, he being 21 at the time of the offending, you were aged 26. Whilst Mr Luca had no previous convictions and had previously appeared only in the Children’s Court, you had ‘a substantial criminal history’ and had served terms of imprisonment. In my view, that description of your prior history overstates the situation. It is true that there were a significant number of prior convictions recorded against you, that your prior criminal history had involved a relatively short period of imprisonment followed by a community corrections order which admittedly you subsequently breached. Your counsel took issue with this submission as to the role that you played relative to that of Mr Luca. He submitted that I should bear in mind that whilst your role was serious and significant by reference to the number and nature of actions attributed to you, you were not armed with any weapons, you were not involved in inflicting any physical injury upon any particular person, you were not a ringleader and your involvement was spontaneous and not premeditated.
I add to that, in contradistinction to Mr Luca, you did not actively incite and encourage other prisoners to the extent that he did. Nevertheless, as has been conceded by your counsel, your role as at least as serious as Mr Luca’s, if not marginally more serious. The Crown are correct in emphasising the differences in your age and criminal histories. Those factors dictate that on the face of it you should receive a longer sentence than Mr Luca. However, the extent to which you are sentenced should be longer than his is moderated in my view by significant matters in mitigation that are personal to you which do not apply in Mr Luca’s situation. So, whilst I am proposing to sentence you to a longer term of imprisonment and a longer minimum non-parole period than Mr Luca was effectively ordered to serve, it will be only moderately longer.[13]
[13]Ibid [8]–[10] (citations omitted) (emphasis added).
Prior to these observations regarding Luca, the judge had set out in paragraphs 1 to 7 details of the applicant’s previous criminal record, and referred to the circumstances of his offending as contained in the Prosecution Opening for Plea. He described in detail precisely what the applicant had done on the day in question, and only then referred to Luca’s case, as summarised above. Having dealt with that case, the judge summarised the careful and detailed plea in mitigation that had been made on the applicant’s behalf, and referred to the various psychiatric and psychological reports that had been tendered on the plea. He described the applicant’s family background, and went into considerable detail regarding his history of drug use. He referred to the principles set out in Verdins,[14] without citing that case by name. In effect, of the 36 paragraphs that are contained within the sentencing remarks, only paragraphs 8 to 10 made any mention of the sentence imposed on Luca.
[14]R v Verdins (2007) 16 VR 269 (‘Verdins’).
The applicant’s submissions
The riot on 30 June 2015 resulted in a significant number of the rioters being prosecuted, the first of those being Johnathon Luca. On 24 October 2016, the Chief Judge of the County Court sentenced Luca to be imprisoned for two years and five months. It was ordered that one year and nine months of that sentence be served cumulatively with the sentence Luca was undergoing, and the judge fixed a non-parole period of one year and six months. Thereafter, between 24 October 2016 (when Luca was sentenced) and 10 August 2017 (when the applicant was sentenced), 39 other rioters were sentenced for their involvement in the MRC riot.
In support of the application in this Court, it was submitted that the judge’s sentencing remarks in the applicant’s case reveal that the judge used the sentence imposed in Luca as a ‘starting point’ to which — because of differences between the applicant and Luca — he ‘added time’, before taking into account mitigating factors personal to the applicant.
The applicant acknowledged that the sentencing judge was required to have regard to the sentence imposed in Luca when considering the issue of parity. Thus, the judge was required to have regard to the differences between the applicant and Luca in relation to their respective roles and respective subjective circumstances. Further, the sentence in Luca also had some part to play in the assessment of current sentencing practices. The applicant’s ‘complaint’ was, however, that the judge’s sentencing remarks reveal that he:
· treated the sentence imposed in Luca as a ‘starting point’;
· determined that the applicant should receive a longer head sentence and a longer effective non-parole period[15] than was imposed in Luca, because:
[15]When sentenced for the riot, Luca was serving a sentence of three years and six months’ imprisonment, with a non-parole period of two years. He had served 557 days of that sentence before he was sentenced for riot. Chief Judge Kidd imposed a new non-parole period of 18 months. Luca’s non-parole period was thus effectively increased by just less than 12 months as a result of his involvement in the riot.
(i) the applicant’s role was at least as serious if not (in his Honour’s view) marginally more serious;
(ii) the applicant was not a youthful offender; and
(iii) the applicant had a more significant criminal history; and
· moderated the extent to which the applicant’s sentence was to be longer as a result of matters personal to the applicant.
It was submitted that the judge’s approach amounted to sentencing error. Counsel relied on Director of Public Prosecutions (Cth) vGregory,[16] a case which ‘illustrates the inherent dangers of using the sentence of a co-offender as a starting point in the sentencing task and, by increments or decrements, increasing or reducing that sentence by reference to other factors’, so doing being ‘a form of two-stage sentencing’.[17]
[16](2011) 34 VR 1.
[17]Ibid 11 [32] (Warren CJ, Redlich JA and Ross AJA).
Should error be established, and the sentencing discretion be re-opened, it was submitted that a lesser sentence should be imposed. The applicant sought to rely on:
· his plea of guilty, entered at the earliest opportunity;
· remorse;
· the fact that he was not armed during the offending;
· he was not a ‘ringleader or orchestrator’ of the riot;
· his involvement was ‘spontaneous, not premeditated’;
· he has strong support from his mother and other members of his family;
· subsequent to the offending he was subject to ‘lockdown’ conditions for 14 days, which significantly restricted his movements and left him isolated;
· the sentence imposed — two years and 10 months’ imprisonment — on 10 August 2017 was the second highest of the sentences imposed in relation to the riot;
· significantly, that his ‘general mental condition’ contributed to his offending, by reducing his ability ‘to exercise proper judgement and to make calm and rational choices’, and it ‘reduced, to an extent, his moral culpability’;
· the weight to be given to general and specific deterrence fell to be moderated because of the applicant’s intellectual impairment and psychiatric issues; and
· imprisonment will weigh more heavily on the applicant than it would on a person in normal health (the sentencing judge having accepted that the first, third, fourth and fifth of the Verdins[18] principles applied).
[18]Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
Analysis
As the applicant acknowledged, the judge was required to pay due regard to, and to apply, the principle of parity, which, in the context of this case, was no easy task. The application of the principle of parity to sentences imposed on co-offenders is a difficult enough task when the same sentencing judge is called upon to sentence a mere handful of offenders — particularly when there is great variation between their individual roles and personal circumstances — but it presents singular difficulties when a judge is faced with an offence such as that of the applicant, involving a very large number of offenders, all with different roles and personal circumstances, those co-offenders having been sentenced by different judges.
In such a situation, a sentencing judge has no option other than to adopt a practical and pragmatic approach to parity, which, so it seems to us, the judge did.
There is no particular difficulty in stating the general principles. As Gaudron, Gummow and Hayne JJ observed in Wong v The Queen:
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect. [19]
[19](2001) 207 CLR 584, 608 [65] (emphasis in original). See also Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Green v The Queen (2011) 244 CLR 462, 472–3 [28] (French CJ, Crennan and Kiefel JJ) (‘Green’).
And as French CJ, Crennan and Kiefel JJ said in Green v The Queen:
The parity principle will require the Court, if it is possible to do so, to avoid or minimise unjustified disparity between the sentence it imposes and the sentence which has been imposed on a co-offender. In so doing, the Court, like the primary judge, must have regard to differences between the person being re-sentenced and the co-offender which justify differences in the sentences imposed. [20]
[20](2011) 244 CLR 462, 480 [45].
In this Court, in Kelly v The Queen,[21] Redlich and Weinberg JJA formulated the principle of parity in the following terms:
The notion of equal justice is the genesis for the principle that there must not be an unjustifiable disparity in sentence between similar offences and similar offenders. It gives rise to the principle that like cases should be treated alike. Accordingly, persons who have been parties to the commission of the same offence should, where other things are equal, receive the same sentence. But considerations of age, background, previous criminal history and general character of the offender, in addition to the part which he or she played in the commission of the offence, may reveal that other things are not equal. This Court will interfere in such cases where it considers that the disparity between the co-offenders is ‘marked’ or, as Dawson J said in Lowe v R, where the differences between the sentences are ‘manifestly excessive'.
The justification which is assigned to this Court's intervention in the case of such disparity is that it has engendered a justifiable sense of grievance in the co-offender or, in other words, gives the appearance to the impassive, objective bystander that justice has not been done. To eliminate or diminish the sense of grievance or the appearance of injustice this Court will, in an appropriate case, reduce the more severe penalty to bring it into conformity or more into line with the co-offender's penalty, although it is well established that ‘there is no principle of law that sentences must strictly compare’.
Where the principle of parity is enlivened, this Court will not necessarily reduce the higher sentence so that it equates in all respects with the sentence imposed on the co-offender. While the sentence imposed on the co-offender must be taken into account as part of the discretionary exercise, justice will not necessarily require that the court match the sentence imposed upon the co-offender.[22]
[21][2011] VSCA 10.
[22]Ibid [5]–[7] (citations omitted).
The real difficulty, as in so many cases, is in applying the general principles set out above to the particular circumstances concerning the applicant’s involvement in this offence .
In our view, it was understandable — and entirely appropriate — that the sentencing judge would look to the sentence imposed in Luca, it being the first in the series of sentences imposed (and to be imposed) on the large number of prisoners who took part in the MRC riot. Indeed, in order to be faithful to the principle of parity, in the circumstances the judge had no option but to do so.
Central to the applicant’s case in this Court was the contention that the judge indulged in ‘two-stage sentencing’ by using the sentence in Luca as a ‘starting point’ and that his Honour, ‘by increments or decrements’, arrived at the sentence to be imposed on the applicant. In our view, that is not a fair characterisation of the way in which the judge approached the task before him.
Parity issues often arise in sentencing appeals. Disparity may either be justifiable or unwarranted. Achieving perfect parity is virtually impossible, particularly in a case such as this, involving multiple offenders. Anomalies of one sort or another are inevitable. Otherwise, the reduction of one of a number of sentences imposed on a single offender will invariably have a flow on effect allowing all other offenders to come back to this Court, arguing that the entire sentencing process for all offenders should now be reconsidered. Where it is recognised that there is no single correct outcome in any sentencing synthesis, and that there is a significant margin within which even disparity must be accepted, the hurdle that the applicant must overcome in seeking to have his sentence reconsidered, on the ostensible ground of two-tier sentencing, can readily be appreciated.
Of course, parity operates as a check upon the overall sentencing process. The task of a judge in sentencing co-offenders is to discern real and substantial grounds for distinguishing between them. Any significant disparity should be capable of a rational explanation, but precise mathematical evaluations of debits and credits between offenders is not only impossible to achieve, but contrary to the methodology of intuitive synthesis.[23]
[23]Arie Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014), 442.
When parity considerations arise, they can justify the reduction of a sentence that would otherwise be regarded as appropriate.[24] Such considerations cannot be used to ‘uplift’ a sentence that the judge regards as meeting all other relevant sentencing considerations. To approach the matter in that way would be error, and could amount to two-stage sentencing. However, that is not the approach adopted by his Honour in this case.
[24]Though never to the point of imposing a sentence that is manifestly inadequate.
When the judge’s sentencing remarks are properly analysed, it is plain that his Honour first had regard to the applicant’s role in the riot, so that it could be compared, for example, with that of Luca. The judge had to do this. Had he not done so — in the face of a prosecution submission that the applicant’s role was greater than that of Luca — he would have fallen into error. Next, the judge — as he was required to do — made comparisons between Luca and the applicant (in particular, age and antecedents) so as to gain a sense of relevant points of similarity and dissimilarity. Had he not done so — in the face of a prosecution submission that the applicant, being older, and having a more significant criminal history, should be regarded as more culpable than Luca — again the judge would have fallen into error. Having made those comparisons, the judge took into account the matters personal to the applicant. His Honour then synthesised all of those considerations in order to arrive at an appropriate sentence.
R v MacGowan[25] was a case of alleged disparity between co-offenders. Chief Justice King spelled out the proper approach to sentencing co-offenders:
The principles which should govern the Court’s approach to a situation such as this have been laid down by the High Court in Lowe v The Queen. It is now convenient to state certain principles, derived from Lowe’s case and from decisions of this Court, which should govern the approach of sentencing judges and Courts of Criminal Appeal to the sentencing of co-offenders.
...
2. Sentences imposed by different judges on co-offenders should also be proportionate to the respective degrees of culpability and the individual circumstances of the co-offenders. In such circumstances, a sentencing judge should ascertain the punishment which has been imposed upon any co-offender previously sentenced. He should endeavour to assess a sentence which fairly reflects any relevant distinctions. ... The sentencing judge should give reasons explaining any disparity between the sentence which he imposes and earlier sentences imposed on co-offenders.[26]
...
[25](1986) 42 SASR 580.
[26]Ibid 582–3 (citations omitted).
In our view, the sentencing judge did as he was required by authority to do. The suggestion that he indulged in a process of two-stage sentencing is without merit.
The application for leave to appeal against sentence must be refused.
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